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This is a quick summary of various issues raised. This is not intended to be complete. Rather, it addresses some of the key problems in the White House statements before the Senate Judiciary Committee.

This information will be incorporated in other analysis, and is not intended to be the "last look" at the hearing. Rather, the intent of this information is to share the perspective.

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[ For your convenience, there is an NSA Hearing Archive; Click here to read other content in the NSA Hearing Archive.]

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Removal from office

Instructive for ongoing excuses. Senator Biden raised several interesting standards for a periodic review, however non of these standards addresses the core issue: Whether the White House conducts warrants removal from office. On the surface, it appears the conduct is not different than Rendition, Guantanamo abuses, or other issues of torture. The ticking time bomb defense fails. [See details]

Three year delay

Fatal admission. One significant revelation was Gonzalez waited until 2004, three years after “this program started to discuss whether Congress would or would not agree with the needed FISA changes. Thus, the only reason Gonzalez made any claim that there was a roadblock from Congress had more to do with exposure of the program – in that there would be opposition – rather than a concern whether the White House could or could not get support.

Picking and Choosing Inconsistent Reliant on Case law

Jackson’s three standards in Youngstown have been stretched in their application beyond recognition. The White House has defined the situation not in terms of reality, but what will avoid needed judicial challenges. It remains to be understood how many Americans have been captured, and rendered to Eastern Europe.

Gonzalez problem in relying on Jackson – or in this case ignoring Justice Jackson – is that his construction is at odds with the Jackson test. Just as Gonzalez argues that Carter could not waive a power of future Presidents; AUMF cannot confer a power reserved for Congress. Indeed, just as Gonzalez argues that FISA did not limit powers, neither did AUMF create or broaden powers.

The problem the White House has is that although it argues FISA does or does not apply, it still relies on FISA for guidance on the minimization procedures. Bluntly, by relying on FISA the White House defeats its argument in contenting that the FISA limits power. If this limiting construction were true the White House would not rely on FISA.

Case law problems

Frivolous. Senator Hatch raised several cases, non of which when examined in detail support the White House. Rather, the White House relies on selective application of the case law in asserting a legal defense. For example Hamdii case is asserted to be as a general reason for doing or not doing something. Unfortunately, the White House has its timelines, facts, and legal arguments backwards. Hamdii is no defense in that the prohibited FISA conduct occurred prior to the court ruling; also the Justice O’Conner explicitly stated the Hamdii ruling narrowly applied. At worst, the White House ignores the equally damaging Supreme Court case in the Padilla case affirming the right of people to rely on the law.

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Added 07 Feb 2006Davide Cole reminds us that Hamdii was an issue because FISA-like specificity did not exist in the AUMF. Unlike FISA which mandates the Presidnet during times of war get a warrant within 12 days, there was no such specific language in the AUMF.

Gonzalez relies on the ambiguity of the Hamdii-AUMF nexus -- not a declaration of war -- to assert that the explicit FISA provision -- specifically authorizing the President may wiretap during wartime if he get a warraant within 12 days -- should be trumped and ignored. This is illegal. [ Visit FISA statute on war time authority to wiretap: 50 USC 1811]

End addition 07 Feb 2006

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Nixon

Discovery. It is reasonable to question the White House assertions of privileged. Nixon reminds us that only private counsel memos enjoy that protection. Given the unfavorable weather, Congress does not appear likely to assert this power and demand access. Given the four years of abuse, White House “honor” has a higher burden of proof.

Power: FISA does not limit powers; it defines system of checks and balances

Inherent authority is questionable as a legal theory to justify the violations. Nothing prevents the President from protecting America or gathering intelligence. FISA does not limit power. Rather, it narrowly defines how that power shall be monitored; nor does it prevent activity, it merely defines how the system of checks and balances will be applied to the proposed activity. If the President had a problem with FISA, he should have so sated. His conduct is at odds with what is explicitly in FISA.

Gonzalez in the afternoon session before Feingold spaced out. You’ll notice he starts rambling, searching for words. Gonzalez made a noticeable outburst, as if in denial, “It is not a crime,” that the program had not been aphorized in violation of statutes. That is to be proven not asserted. You’ll notice he stumbled over the 1967 Katz case discussion. The warrant requirement is an issue whether information is or is not suppressed, and not used for investigative leads. We judge the case law is irrelevant to whether NSA does or does not forward information from Canada, UK, New Zealand, or Australia to local law enforcement.

Additional holes in White House defenses to exploit

Gonzalez has fully met expectations. Rather than simply parrot the failed arguments, he’s exposed a number of gaping holes in the White House legal defense. The Senate fully exploited these.

It’s interesting his argument shifted from “we can’t go to Congress” to “we would be happy to fully cooperate.” In truth, the change is due to detection, not contrition. Whether the White House actually cooperates is unlikely; most likely, the result will be at odds with what a reasonable person might conclude: Full cooperation to remedy this problem.

Burdensome Test: At odds with practice

Conduct fails to match asserted benefits of non-compliance. The President’s approach to FISA – as executed in practice – appears to be just as cumbersome on paper, but not lawful. It remains to be understood why this apparently equally cumbersome process was relied upon. We judge the process is simply a paper exercise. We recommend sampling of the NSA meeting minutes, time cards, and entry-exit data to verify the names of personnel who supposedly attended meetings. We anticipate that personnel will be out of the building at the time of the asserted meetings occurred.

The problem is FISA has been ignored, without a good showing that it is unconstitutional; or that the case law relied on to ignore it is a credible foundation. This is the reason for having a system of checks and balances. The problem is this defective system is not isolated to a single program, but many programs which the Attorney General indirectly confirmed existed.

The White House points to the burden of work, requirements, and compliance. Indeed, the heavy burden of Constitutional power seems far too great for this President. One problem is the fictional balancing test between [a] interference of power and [b] Article 1 Section 8. Bluntly, this is absurd. Article 1 Section is clear, while an inference of power is merely a speculative notion. It is also legal fiction that power and roles are shared. Rather, the Constitution expressly separates function and power. The role of the Constitutional system is to ensure that a single function – in this case military related function – is not exclusively controlled by one branch. It is also fiction to believe that if 50% in Congress agree to something that the conduct is legal. Rather, the proposed action may be devoid of Constitutional foundation.

Domestic Programs

Adverse judgments warranted until the White House cooperates. It is reasonable to assume the unlawful activity is pervasive and the system of checks and balances has been corrupted.

We judge the DoJ has ordered JTTF to work with DoD personnel during Operation Falcon as a domestic cover program. IT remains to be understood whether Falcon was a hands on training program, or something broader in using American households as a training ground for civilian-clothed DoD personnel.

Some have suggested that we can’t find out more. Yet, Congress has the power under the Constitution to keep proceedings secret. It is clear there are DoJ abuses with respect to the FBI MAOP. DoJ has sought to have cases dropped in exchange for settlements.

We can only wonder what else is going on inside the many other programs Gonzalez spoke about. Using the White House approach, it seems clear Gonzalez has no intention of providing sound legal advice to keep the President out of hot water; rather, he’s there to create an argument to justify what has already been done. In some case, many years after the crimes have been committed. It remains to be seen what powers the White House has claimed or delegated that are not lawful or expressly conferred. It appears the White House has used secret executive orders to grant broad powers to law enforcement to move without oversight.

Inherent authority has been asserted at a new sort of pseudo-constitutional rule which can justify anything. There’s waffling over whether we’re talking about broad, exclusive, inherent powers or narrow, shared roles.

You’ll notice the activity changes from terrorist surveillance to counter surveillance, not “counter intelligence.” This implies that any American – not described as a terrorist – can be shriveled by applying the broad application of AUMF legal theory.

Gonzalez fatally admitted that data mining along with many other activities are occurring under “other programs.” It remains to be understood whether the AUMF is used as a legal foundation to ignore other prohibitions. JTTF is currently authorized to lie to Americans to protect ongoing covert activities, and does engage in unlawful conduct in order to hide their connection to DoJ.

There’s an issue with “public reaction” to the “larger programs” which do other types of targeting. We judge this activity similarly lacks legal foundation, and is based on asserted power and construction of facts, not on a reasonable standard. NSA data appears to have been used for domestic propaganda and organizing political messages in the open media.

Congress never granted the President the power to unlawfully use US military forces in a domestic lawn enforcement intelligence gathering capacity. We judge the NSA information provided to JTTF have been material in targeting law enforcement. It remains to be seen whether there are Brady and I-drive issues compounded by the massive NSA data.

There have been no complaints because the public hasn’t been informed how the JTTF is abusing its powers. A failure to cut funding does not legalize something; rather, judicial power is conferred upon the Judicial Branch. That Congress may have authorized funding for an unlawful activity does not ratify the conduct that remains illegal. The problem is that the committee who had the power to write the laws was never consulted. Rather, Gonzalez simply sought retroactive approvals because he got caught.

Judicial Reviews

This process has been undermined. It’s interesting that DoJ claims they had many debates; but why can’t this debate be presented to the FISA court for review? Against DoJ in 2006 cannot now present information to retroactively ratify the misconduct.

Newsweek reports the DoJ attorneys consulted private attorneys. When asked whether the AUMF would authorize searches of American homes, Gonzalez noticeable paused, and changed the focus to the NSA program. We judge this has been occurring, in violation of the law.

Rather than subject the activity to oversight, the White House said they created a system relying on NSA experts to oversee it. Curiously, the same NSA experts were ignored when they reported the WMD data in Iraq did not support a lawful invasion.We judge the White House’s problem is that they have insulated itself for too long from Judicial oversight, that they cannot credibly argue the needed players are ready. There’s no merit that the Supreme Court in Hamdii knew the full range of NSA programs; but this is irrelevant in that Hamdii was narrowly applied. That the White House has stretched the case is not unsurprising.

Pre 9-11 Monitoring: AUMF irrelevant.

Pre 9-11 monitoring makes references to AUMF irrelevant. Three is a problem with this activity. When we define “the program” we have no way of knowing how this activity does or does not include activities that were occurring prior to 9-11. We know that NSA monitored prior to 9-11. Any assertion that the program is or is not effective in terms of mitigating an attack appears to be overstated. Self-evidently, 9-11 occurred despite the NSA monitoring.

Gonzalez generally avoided legal issues by pointing to the “unmentionable program.” However, one curious interchange was when Gonzalez emphatically asserted that NSA did not start before 9-11. Surprising because this was a denial of something not asked. This warrants review: What programs were actually in effect prior to 9-11, and why has phase II been delayed despite apparent Congressional knowledge of this pre-9-11 monitoring.

Some have suggested the current operations are “unlike any other.” Yet, this is irrelevant whether the Constitution does or does not apply. The general principle is that the conduct must be lawful; nor whether the desired outcomes – whatever they may be – can be justified. Curiously, when arguing that past presidents have engaged in surveillance, the Attorney General does not mention that FISA existed during the first Gulf War or in the latter half of the Cold War. It is as if the FISA suddenly emerged from the ether, and remains the sole barrier to protecting the country from attack. Rather, the real issue is why despite the NSA monitoring prior to 9-11, the President failed to go to Congress to share what he knew. We judge the Congress has been briefed on information they have been sworn to secrecy.

AUMF: No basis for reliance as trumping specific FISA

Frivolous. Specter’s closing comments summarized Justice Jackson’s remarks on the tests. Specter concluded the AUMF did not Amend FISA. Gonzalez conceded the goal was – by framing the arguments as they did -- to avoid a constitutional debate, not subject the President to full oversight.

AUMF is asserted to be the justification for ignoring FISA. Rather than defend or justify the unlawful conduct, the White House shifted it’s arguments to whether or not FISA does or does not lawfully constrain power. However, a similar argument could be made about AUMF: Does the authorization unconstitutionally confer on the President any powers reserved for Congress; and if FISA is or is not selectively followed despite specific language, AUMF would similarly have problems as a justification given its more general language. Bluntly, the issue becomes whether AUMF has unconstitutionally conferred or granted power – however vaguely – while unconstitutionally amending specific statutes within FISA. Regardless what the White House may argue, AUMF did no such thing, leaving FISA intact.

The White House’s core contention is that the current legal structure is at odds with what it wants to do, and like the torture prohibitions picks and chooses whether to assent, ignore, explain away the standards of conduct. The White House’s problem is that it started with the faulty premise that FISA – as interpreted, however loosely – has no say on whether the President can or cannot do something. Rather, they argue in public the opposite: That the powers cannot be constrained by FISA. This is fiction. The issue with FISA isn’t a constraint on power, but the reverse: A constitutional promulgation consistent with Article 1 Section 8 which defines how that power will be used. FISA does not prohibit power; rather, it checks whether the power is lawfully used. This is not a subtle distinction.

Unlawful changes to Bill of Rights

The 4th Amendment is a leash, not a rubber band. The 4th Amendment appears to have been amended. NSA targets are assigned using a standard of “reasonableness.” Although the NSA General Counsel may have provided training, it appears NSA intercepts are not meeting the rigorous standard of the 4th Amendment. Rather, a broader look at the NSA programs is warranted, not just in terms of whether the President remains fit for office, but to explore what types of programs Congress has been briefed on that they should have earlier raised questions over. Again, given the silence we are forced to make adverse judgments and conclude specific Congressional leaders know the problems with the ongoing programs – but the instant case, and the more general White House approach – but have failed to timely remove themselves from the conspiracy of silence. It remains to be understood what promises, threats, or misleading statements they have relied on when choosing silence; after some thought, some may resign.

It is not credible to assert that NSA targets specific people and excludes others. The vacuum cleaner analogy defies this assertion. If NSA could target specific locations, then DoD needs to explain why those so-identified by location or identification able infraction are not subsequently seized. We have no Bin Ladin.

Article 1 Section 8

Exceptions have to be explained, not merely asserted or assumed. The Congress has the power to regulate US persons at facilities serving the US, regardless whether those facilities are in Ft. Meade or Eastern Europe.

Continues to be used as the rallying point for “new war.” But Article 1 Section 8 clearly envisioned unconventional warfare when it promulgated powers on Congress to regulate the capture of Pirates. The issue is not that President can or cannot gather investigate; rather, how he is to gather information – engage in an intrusion – when one or both of the NSA targets is an American living in the Untied States. Gonzalez did not refuse that other programs do monitor US citizens communicating within CONUS. If 9-11 and the war on terror truly was a paramount issue warranting this conduct, the White House cannot explain the diversion to Iraq.

Thus, by engaging in another military adventure, the White House breaks the link between 9-11 and activates in 2005. Rather, one can only argue that “the war on terror justifies action” if the White House engages in actions that are consistent with that premise: Conduct related to terrorism. By entering Iraq on false pretenses, the White House cannot claim there is any link between AUMF and actions in 2005. Rather, AUMF fails as a defense in that the NSA activities were occurring prior to 9-11. Any references to terrorism, 9-11, AUMF, or Iraq as a legal foundation for the conduct fail.

Technology: Used without regard to legal constraints

The problem is the NSA has been allowed to do what it wants without adequate constraints on its technology. NSA has been successfully used to gather information. It is clear the information gathering capability is immense; but this capability should not drive whether the White House does or does not follow the law. The Constitution is there as a guide, not as a speed bump to be removed to minimize damage to tires.

Twisting on AUMF

Most of the discussion about AUMF was twisted from whether the AUMF did or didn’t authorize something, to whether the AUMF allowed FISA to be applied in a creative way. Rather than use FISA as a constraint, AUMF became the quick sand for the White House legal defense.

It’s interesting that the AUMF is used to trump FISA, almost as if the AUMF were more important than the Constitution. All the legal issues the White House raises with FISA can be equally applied to AUMF: Is the AUMF constitutional, authorized, and does it create or confer powers onto the President that are not intended. It is our view this analysis can only be credibly done by the courts – and is at the heart of the White House secrecy. The White House does not wish to subject its many other programs to needed independent, judicial review. It is without merit AUMF is the requisite legal framework to meet the statutory change exception under FISA.

The White House’s problem is that it looks at FISA as an inconvenience. Rather than focus on the White House violations, it changes the focus to questions of power. This is a red herring. Just as Gonzalez argues that a statute does or does not have to be followed, so too is the issue of whether POTUS does nor does not have power. No statute or authorization can confer something the Constitution does not confer. In relying on AUMF, the White House asks that we embrace a Constitutional fiction: That the Constitution can be massaged to suit the weather, rather than ensure the conduct remains well disciplined under the rule of law. A President cannot credibly argue he is preserving the rule of law when he massages the law to suit his own ends. Yes, this President does not assent to the rule of law; he defines the Courts, ignores the Congress, and asserts vague terms are explicit direction; while at the same time exercises explicit powers Conferred only to Congress, and ignores rules Congress makes.

Shifting Focus, Terminology

Pervasive word magic. It’s interesting to see Gonzalez change subjects. When asked about a legal question, he changes the focus to operations, and declines to respond.

There’s an interesting shell game: FISA, constitutional authority, AUMF. Some are ignored, some are interpreted, and others openly violated. It depends on what the White House wants to accomplish. It remains to be understood which factors DoJ hasn’t reviewed.

All the White House ha done is narrowly define “what is known” as a “single program.” We have no way of knowing whether the ‘real program” is something larger; and how the “comments on this program” change as more details about NSA activities surface.

When the White House speaks of a “newly tailored program,” this appears to be simply how they want their unlawful activity to be presented so that it does not get Congressional oversight or Court review. After first twisting the laws, then relying on legal fiction, when the White House gets an unfavorable response, it does it anyway.

Management Interagency Communication on Criminal investigations

Federal. Gonzalez appears to have poor presentation skills in terms of whether his office in DoJ is or is not aware of ongoing criminal investigations within NSA. Although White House directed invasions may have some interest, Gonzalez does not appear to have a good working relationship with the NSA General Counsel, or does he have visibility of whether the NSA programs are or are not being abused; nor whether the possibility of criminal sanctions into misconduct are mitigating larger abuses.

Gonzalez appears to have taken a hands off approach to whether the programs under NSA are or are not sufficiently overseen, and investigated by criminal investigators. He defers these questions, in our view incorrectly, to the NSA management and NSA General Counsel. We recommend the GAO and DoJ IG to independently review whether the Attorney General is ineffectively overseeing the status of ongoing criminal investigations. His job is not simply to advocate for the White House as he did as White House counsel, but to ensure that the criminal investigations are sufficiently supported both in terms of management support, and staffing.

Clinton and Gorelick

Red herring. Senator Feingold read Attorney Gorelick’s letter emphasizing the FISA did not address physical searches. Although FISA had been changed five times since 9-11, the recurring theme was the failure to secure needed changes before taking action.

Congressional Notifications

Although unrelated to the removal decision, issue warrants state review during debates. The intelligence committee has not been fully briefed on details. There are other ongoing programs which the White House has no solid legal foundation. It is curious why the NSA leaks occurred, while similar revelations have not yet occurred in DoJ. It remains to be understood whether DoJ staff attorney turnover is related to their knowledge of illegal activities.

Unlawful Contract Waivers

Lawfulness. Notice the similar trends with Titan and the Abu Ghraib contracting activities. DoJ has independently signed waivers for telephone companies. It remains to be understood whether these waivers are enforceable, or whether a reasonable person should know that the FISA requirements are not met.

Gonzalez Debarment

Senators Feingold and Feinstein asked very probing question leaving Gonzalez winded. We judge they’ve touched a sore spot on the legal issues over perjury and situations Gonzalez knows about but failed to truthfully respond to questions during his confirmation hearings.

President’s Budget

Had the full program been discussed with Congress, there may have been support for increased manning. Yet, rather than manage the NSA intercept program, the FBI continued to chase leads. The barrier to access was lowered, as was the confidence the data was or was not meaningful.

We recommend reviewing the basis for cash awards to employees in DoJ: To what extent Congress was denied information, or issues not raised so that performance problems were not identified.

Reforms: Program Evaluation

This issue is unrelated to the removal decision. When asked about how we know whether the program was or not working, Gonzalez simply pointed to the evidence, without saying how the fruit of that data was vetted in terms of usefulness, reliability, or improvements into the NSA tracking.

There are two ways of looking at power. One is to look at the NSA program in terms of intrusion; a second is the other view as a shield. The problem is that the White House is self-defining what is reasonable, controls the information, and excludes the other branches. There is no safeguard which Federalist 47 required. Thus, with the many programs, we can only conclude that this concentration of power is widespread. IT remains t be understood how many analysts in NSA have been told “their program” is outside what congress is looking at.

How do we know whether the particular NSA employee is working on “another program” or “this one”?

How do we know whether a specific tool is effective; how do we define effective?

Congress enjoyes the unitary theory of tyranny

State level officials need to understand what plan to remedy this problem in Congress. The Congress has the power to make rules. However, it does not have the power to change whether the statutes are or are not followed. This conduct amounts to Congressional approval of conduct they cannot lawfully recognize. One does not enact legislation only to use the lack of enforcement as an excuse to openly change the law, and expect not comment.

It is not clear that the intelligence committee chairman have been appointed by the White House to be judicial officers in adjudicating whether the White House has or has not met their statutory requirements. This is a matter of law for the court to decide, not to use a starting premise to justify reducing the already cursory oversight.

It remains to be understood whether the Intelligence Committee Chairman have lowered the reporting standards, and how they were able to apparently adjust the reporting requirements without statutory changes. This would amount to White House deference to those in the Congress who assert the same privileged: Unilateral, unchecked discretion to decide which statutes are or are not followed. Again, the problem isn’t simply that the White House asserts the powers of all three branches, but the Committee chairmen’s similar assertion of consolidated, unchecked power is self-evidently not challenged in the courts.

Patriot Act: Circumventing what is allowed

Excuses. It’s curious that despite FBI having the authority to do things, it chooses to circumvent the procedures and violate the law.